SuperSport Win: The High Court of Kenya has affirmed a permanent injunction compelling internet service providers (ISPs) to block sports websites infringing on copyrighted material. The court had on 26th November 2021 issued a temporary order to the ISPs to block pirating websites but the directive was swiftly stayed by the Coúrt of Appeal on application by Safaricom.
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In November 2019, Multichoice Kenya filed a suit against Safaricom PLC and Jamii Telecom Ltd seeking to compel the ISPs to block live sports streaming sites on their networks. In delivering her verdict, Hon. Justice Wilfrida Okwany made a finding that MultiChoice Kenya had lawfully issued valid take-down notices to the ISPs and they ought to have complied with the same.
She further found that the ISPs have not given any lawful excuse for their failure to comply with the take-down notices. On delivery of her ruling, Safaricom requested for and was granted by the court 72 hours to comply with take-down notices.
The ISPs have long opposed the takedown provisions in the Copyright (Amendment) Act and had even sought to have the provisions wholly repealed from the Act 18 months after their coming into force.
SuperSport has made substantial financial investments to acquire and hold exclusive broadcast and transmission rights for UEFA Super Cup, Championship & Europa Leagues, English Premier League and La Liga in Kenya and other sub-Saharan Africa countries. The constant i*légal broadcasting over the internet of their protected content continues to dent their revenues from paid-up subscriptions.
This is the first time that a Kenyan court has sanctioned takedown notices in terms of the Copyright Act as amended in 2019. The amended Act states in section 35B (1) that, “A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider may request by way of a takedown notice, that the ISP removes the infringing content.”
The Kenya Copyright Board (KECOBO) and the Communications Authority of Kenya (CA) were interested parties in the suit. Representatives of civil-society copyright bodies, which work to fight content piracy and protect intellectual property, have welcomed the verdict.
“This is a red-letter day in the fight against piracy in Africa,” said MultiChoice Kenya Managing Director, Ms Nancy Matimu. “We have been fìghting for years to ensure that there are legal copyright protections, and that those protections are enforced. The court has reaffirmed the stance of the law that copyright must be protected.”
According to Ms Matimu, the case will have enormous implications for the content industry right across the continent. “The Kenyan courts have sent a message to the rest of the world that we respect the right of content creators to earn a living from their work,” she added.
Ms Matimu said if governments in the rest of Africa followed the Kenyan example, it would go a long way in strengthening the continent’s standing as an investment partner. She is hopeful that other African countries will introduce legislation to protect the work of content creators such as artists, musicians, broadcasters from being pirated and used illegally.
“This is a landmark ruling,” Ms Matimu said. “With this verdict, Kenya is saying that any business looking to invest in Kenya can rest assured that their intellectual property will be protected.”
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